Akash Agarwal @ Akash Aggarwal V. The Union of India, through C.B.I.

W.P.(Cr.)/90/2021

AI Insights

The case revolves around a petition filed by Akash Agarwal seeking to quash an FIR and amalgamate charge sheets from different cases under the Prevention of Corruption Act, 1988. The petitioner argued that the transactions involved in the cases were similar and should be considered together. However, the CBI opposed this, highlighting the distinct nature of each case and the involvement of different companies and officials in the alleged conspiracies. The court examined the similarities and differences in the transactions and the legal precedents cited by both parties before concluding that the cases should remain separate.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 696137 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 20-09-2023
• Assessment Year: misc
• Other Referred Cases: Amitbhai Anichandra Shah v. Central Bureau of Investigation, Upkar Singh v. Ved Prakash and Others, Nirmal Singh Kahlon v. State of Punjab, Lalu Prasad @ Lalu Prasad Yadav Vs. State through C.B.I. (A.H.D.), Ranchi, Jharkhand
• Laws Referred To: Prevention of Corruption Act, 1988, Indian Penal Code
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ANIL KUMAR; CHANDANA KUMARI; ABHIJIT SINGH
• Assessee Lawyers: ROHIT SINHA; ABHISHEK AGARWAL; ATUL VIVEK
• Keywords: Charge Sheet; Conspiracy; Quashing of FIR; Amalgamation of cases
• Section: 12; 13(2); 7; 13(1)(d); 120B

Judgement Text

"1 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- W.P.(Cr.) No. 90 of 2021 ---- Akash Agarwal @ Akash Aggarwal .... Petitioner -- Versus -- The Union of India, through C.B.I. .... Respondent ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner :- Mr. Rohit Ranjan Sinha, Advocate Mr. Abhishek Agarwal, Advocate Mr. Atul Vivek, Advocate For the UOI (CBI) :- Mr. Anil Kumar, A.S.G.I. Ms. Chandana Kumari, AC to A.S.G.I. Mr. Abhijit Kumar Singh, C.G.C ---- 4/20.09.2023 Heard Mr. Rohit Ranjan Sinha, the learned counsel appearing on behalf of the petitioner and Mr. Anil Kumar, the learned A.S.G.I appearing on behalf of the respondent C.B.I. 2. This petition has been filed for quashing of the F.I.R in R.C. 06(A)/2018 registered under section 120B IPC read with sections 7, 12, 13(2), 13(1)(d) of the Prevention of Corruption Act, 1988 including the charge sheet No.10/2020 dated 18.12.2020, pending in the court of learned A.J.C.-XVI- cum- Special Judge, C.B.I., Ranchi. The prayer is further made that Charge Sheet No.10 of 2020 dated 18.12.2020 in R.C. 06(A)/ 2018 may be directed to be treated as supplementary charge sheet in R.C.03(A)/ 2017 –D dated 10.07.2017. 3. Mr. Rohit Ranjan Sinha, the learned counsel appearing on behalf of the petitioner submits that the transaction of both the cases are similar and in view of that, the cases may be tagged together. He submits that in internal page no.12 of the writ petition, he has bifurcated the allegation of different cases. He draws the attention of the Court to page no.138 which is the FIR with regard to R.C.04(A)/2018 and submits that the nature of the allegation in both the R.Cs. are the same. He further submits that in the present case, the charge sheet has been submitted 2 and in paragraph no.16.6 and 16.7, the allegation against the petitioner is made only in close connection with Tapas Kumar Dutta and Vishwanath Agarwal. He further submits that in the charge sheet it has been stated by the C.B.I. that the allegation of R.C.-06(A)/2018 is the of-suit of R.C.- 03(A)/2017 and he further refers to paragraph no.16.19 of the charge sheet and submits that larger conspiracy has been stated therein and in view of that, it is crystal clear that the transactions are the same. He further refers to the rejoinder filed by the petitioner and submits that before the learned court, the C.B.I has admitted that the transaction involved in the conspiracy may be same, however, the case was registered and the different officers were entrusted with the investigation as there was huge number of the companies to be investigated. He submits that in these documents on the record suggest that for the similar transaction the cases has been registered and in view of that, this Court is competent to direct to amalgamate charge sheet in R.C.-06(A)/2018 with the charge sheet of R.C.-03(A)/2017 and to buttress his argument,he relied in the case of Amitbhai Anichandra Shah v. Central Bureau of Investigation, 2013 0 Supreme (SC) 333. 4. On the other hand, Mr. Anil Kumar, the learned A.S.G.I appearing on behalf of the respondent C.B.I submits that larger conspiracy aspect of the nature is required to be considered by this Court in view of the materials brought on record. He submits that the main case being R.C 03/2017 has been registered and further charge sheet has been submitted under section 7, 12, 13(2), 13(1)(d) of the Prevention of Corruption Act and the said charge sheet was filed on the allegation that Tapas Kumar Dutta was functioning as Principal Commissioner of Income Tax, Ranchi during the year 2016-17 has entered into a criminal conspiracy with several Income Tax Officers and 3 private persons who get the income tax assessment files of the different assessee companies transferred from Kolkata to Hazaribagh for providing undue favour to those persons who have been charged with heavy tax liability in lieu of alleged bribe. He submits that main allegation against the petitioner namely Akash Agarwal is that he was controller of M/s One Time Developers Consultants Pvt. Ltd. and M/s Zoom Infra Builtech Pvt. Ltd. and the said companies got the assessment order dated 15.05.2017 and 27.04.2017 passed by Tarun Roy, Income Tax Officer and those companies got benefitted because of re-assessment of tax liability and petitioner Akash Agarwal was also charge sheeted as accused No.A-9 in that case. He further submits that in R.C. 6/A of 2018, the petitioner was not named in the F.I.R. He submits that in that case, five assessee companies were named, that is, M/s Versatile Infracom Pvt. Ltd., M/s Zen Infraprojects Pvt. Ltd., M/s Zigma Infra Projects Pvt. Ltd., M/s Vivacity Projects Pvt. Ltd and M/s Timeless Infra Projects Pvt. Ltd. He submits that these companies are not part of RC 03(A)/2017. The role of accused Akash Agarwal has emerged during investigation as the sole beneficiary of two companies. He further submits that other cases, i.e., RC 04(A)/2018, RC 05(A)/2018, RC 06(A)/2018, RC 07(A)/2018 have been registered against different companies. He further submits that Tapas Kumar Dutta, Bishwanath Agarwal and Santosh Choudhary are common FIR named accused persons in all these RCs/FIRs. However, Income Tax Officer who re-assessed the assessment companies’ under section 264 of Income Tax Act for income tax relief are different. He submits that in RC 03(A)/2017 and 04(A)/2018, the Income Tax Officer are Ranjit Lal, Tarun Roy, Sunil Kumar Gupta and Vinod Kumar Pal. He further submits that in RC 05(A)/2018, Income Tax Officers are Sunil Kumar and J.K. Tigga. In RC 06(A)/2018, Tarun Roy was the Income Tax Officer. He submits that the modus operandi in both the cases, i.e., transfer of assessees’ file, 4 transfer of PANs, remand the file for fresh assessment or re-assessment of tax liability may be similar. He further submits that RC -3(A)/2017 and RC 06(A)/2018, the cause of action, incident and offence are different. In this background, he submits that the prayer made by the petitioner is misconceived one and no case of quashing of the FIR as well as amalgamation of the cases is made out. He further submits that the Court is required to consider the larger conspiracy aspect in these matters which has been decided by the Hon’ble Supreme Court in the case of Upkar Singh v. Ved Prakash and Others reported in (2004) 13 SCC 292 and refers to paragraph no.21 of the said judgment, which is quoted hereinbelow: ―21 [Ed.: Paras 21 and 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./86/2004 dated 15-10-2004.] . From the above it is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.” 5. He further submits that the different FIRs are not barred which has been held by Hon’ble Supreme Court in the case of Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 wherein at paragraph no.53 it has been held as below: 53. Even in Ram Lal Narang [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] we have seen that two of the accused viz. Mehra and Malik, were common. When two conspiracies are alleged; one is larger than the other, there may be some common factors but the nature of offence would differ. An offence committed would not be judged by mere mentioning of the sections but the mode and manner in which the same was committed as also the nature thereof. 6. In view of the above submission of the learned counsel appearing on behalf of the parties, the Court has gone through the materials on record including the contents of the charge sheet as well as the contents of the FIR, which has been annexed with the FIR, it transpires that for different companies the different FIRs have been 5 registered and the investigation has been done by different CBI officials and different assessing officers are also there. 7. It appears that a large number of accused persons are there and all of them have not come to the Court for amalgamation of the cases and this aspect of the matter has been considered by the Hon’ble Supreme Court in the case of “Lalu Prasad @ Lalu Prasad Yadav Vs. State through C.B.I. (A.H.D.), Ranchi, Jharkhand” reported in (2003) 11 SCC 786 wherein para-10 the Hon’ble Supreme Court has held as under:- ― 10. The application for amalgamation of cases is under Section 223 of the Criminal Procedure Code which reads as under: ―223. What persons may be charged jointly.—The following persons may be charged and tried together, namely— (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence; (f) persons accused of offences under Sections 411 and 414 of the Penal Code, 1860 or either of those sections in respect of stolen property the possession of which has been transferred by one offence; (g) persons accused of any offence under Chapter XII of the Penal Code, 1860 relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of 6 this Chapter shall, so far as may be, apply in all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.‖ It is thus to be seen that irrespective of the applicability of clauses (a) to (g), Section 223 gives to the Magistrate a discretion to amalgamate cases. The Magistrate has to be satisfied that persons would not be prejudicially affected and that it is expedient to amalgamate cases. As has been set out hereinabove, on a prior occasion the application for amalgamation has been rejected by the Special Judge. The High Court has also rejected the appeal. Under the circumstances, a fresh application for the same relief would not normally lie. Faced with this situation it had been submitted that the present application for amalgamation had been made as the High Court had already held that there was a single conspiracy and had given liberty to apply for amalgamation at a later stage. It is thus necessary to see what the High Court held in the case of Lalu Prasad v. State of Bihar2. Paragraphs 28 to 32 read as follows: ―28. The fact that separate cases have been registered and are being investigated separately and also the fact that this Court during investigation while considering the question as to whether remand in one case will mean the remand in all other cases, has held that some of the cases form different transactions, are not decisive to the question involved in the case. This Court made observations during the course of investigation while deciding the question of remand only. The separate investigation by itself is not decisive of the fact that all the cases are separate. It is only after investigation that the question has to be decided as to whether they are part of the same transaction or not. Similarly, the fact that the accused persons in both the cases are not common is also not an important fact as even in the cases of single transaction, different offences are committed by different sets of the accused persons. The relevant question that was to be considered by the trial court was whether the series of the acts committed by the accused persons forming different offences at different times and at 7 different places were with a view to fulfil one common purpose and there was a community of criminal intent so as to form a single transaction or different offences were committed independently with a view to fulfil different purpose or object though there was similarity between the purpose and object in the cases. Even if the trial court would have found that the offences alleged to have been committed did not form one transaction, it should have also considered the cases of the petitioners in terms of the proviso to Section 223 of the Code whether it was expedient in the ends of justice to hold a joint trial on such prayer being made in writing by the accused persons and the same was not causing any prejudice to any of the accused persons. The trial court has also not made any effort to find out as to what is the view of the other accused persons facing the trial. For all these reasons, the order passed by the trial court suffers from legal infirmity. 29. * * * 30. The next question is as to what order should be passed in this case after having came to the conclusion that the order passed by the Special Judge suffers from legal infirmity. Whether the matter is to be remanded for fresh consideration at this stage or some other direction is to be given taking into consideration the facts and circumstances of the case. 31. During the course of argument and in the written argument filed on behalf of one set of the accused, it was submitted on behalf of the petitioner that the offences committed in these two cases and other cases are the part of the same transaction, but they have not given the details of other cases. In other cases either charge-sheets have been submitted or the same are still to be submitted. In that circumstance, this question cannot be decided by taking into consideration the allegation made in these two cases only. If this question is decided only after taking into consideration the allegations in these two cases then that matter will not come to an end as this question will be reagitated time and again by the petitioners and other accused persons as and when the other cases will be ripe for framing of the charges and the result would be that the trial will not proceed in any case. 32. Taking into consideration the peculiar facts and circumstances of the case arising out of the Animal Husbandry Scam, I am of the view that the said question is to be decided only when other cases are also ready and reach the stage of 8 framing of the charges. At that stage, if a proper application is filed by the accused persons or by some of the accused persons, the trial court will consider the said question. While considering the question if some of the accused persons have not prayed for joint trial, then the trial court will also consider their stand in the light of the legal positions indicated above. The trial court will also consider whether it will be possible or practicable to dispose of all the cases or some of the cases jointly or they should be tried separately. It is to be clarified that the paramount consideration should be the cause of justice.‖ It is thus to be seen that the High Court has not concluded that there was a single conspiracy. The High Court has correctly held that this question can be decided only when the other cases are also ready and reach the stage of framing of the charges. As has been indicated above, all the cases have not reached the stage of framing of the charges. Three of the cases are still at the appearance stage. Two of the cases are at the stage of framing of charge. Thus in any case, the application was premature. Moreover, the present attempt is likely to result in delay in trial of Case No. RC 20(A)/96-Patna which has progressed considerably. The High Court has also correctly held that it is the trial court which would have to consider the stand of other accused persons who have not prayed for joint trial. It is to be seen that apart from the appellants there are a large number of other accused persons. Most of the other accused persons have not applied for joint trial. This Court does not know what their stand is. When this was pointed out to the counsel for the appellants, it was stated that affidavit of consent, for joint trial, by all the accused in all the cases would be filed before this Court. In our view this is not the stage when such affidavits could be filed. The consent had to be obtained before the application for amalgamation was made. It was for the Special Judge to consider whether it was expedient and in the interest of justice that all accused persons, in all the cases, be tried jointly. It is neither expedient nor proper that the appellants be permitted to bypass the trial court in this manner.‖ 8. All the accused persons have not approached the Court, at this stage, the trial assuming that a crime for the same transaction cannot be allowed. However, it has been held that section 220 and 223 Cr.P.C are not obligatory on the Court to hold a joint trial and the provisions of these sections are only enabling provisions and an accused 9 cannot insist with ulterior purpose or otherwise that tried with co-accused and other accused that too in a different case. It is only a discretionary power and the Court may allow it in a particular case if the interest of justice so demands to prevent the miscarriage of justice. In the instant case, neither the facts and allegations are common nor the evidence is common nor the accused acting with the commonality for the purpose and as such, there is no ground of holding or amalgamating a joint trial and, prima facie, holding a joint trial may lead to miscarriage of justice. In the case of Amitbhai Anichandra Shah v. The Central Bureau of Investigation and Another, relied by the learned counsel for the petitioner, the killing of Tulsiram Prajapati was subject matter of both the FIRs and considering that the transaction of both the FIRs were same, the Hon’ble Supreme Court has directed to treat the charge sheet of another case in the first case, whereas in the case in hand, the facts are different and this aspect of the matter has been answered by the Hon’ble Supreme Court in the case of Lalu Prasad @ Lalu Prasad Yadav v. State, through C.B.I. (A.H.D), Ranchi, Jharkhand(supra). 9. No case of interference is made out so far amalgamation of charge sheet of one case to another is concerned. Further, there are series of allegations of misappropriation in all the cases and the charge sheet has already been submitted which is elaborate one and in view of that also, the quashing of the F.I.R or amalgamation is not made out. 10. In view of the above, no relief can be extended to the petitioner. 11. Accordingly, W.P.(Cr.) No. 90 of 2021 is dismissed. 12. Pending petition, if any, also stands dismissed. ( Sanjay Kumar Dwivedi, J.) SI/, A.F.R "